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To: epow
Additionally, President Bush could:

Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law is, 83 Geo. L. J. 373 (1994); Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993). Paulsen also argues for a form of departmentalism, i.e., that each branch of the federal government has co-equal power to interpret the Constitution independently, with no requirement of giving deference to another branch’s interpretation. Specifically, he states that if the Supreme Court renders a decision with which the President disagrees on constitutional grounds, the President is at liberty to refuse to enforce the judgment. G. Charles Warren, The Supreme Court in United States History 470-71 (1923).

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

14 posted on 12/05/2004 6:50:23 PM PST by Ed Current
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To: Ed Current
If I understand Article III section 2 clause 1 correctly, it grants the SC original jurisdiction in all cases "arising under this Constitution and all laws of the United States" According to the judicial revue doctrine established by Marbury v Madison, this clause gives the SC the power to declare laws passed by Congress unconstitutional and unenforcible.

Article IV sec 1 clearly says that all states must honor the public acts, records, and judicial proceedings of every other state. Article III sec 2 clause 2 gives Congress authority to take away the right to appeal a lower court decision to the SC only in cases in which the SC does NOT have original jurisdiction. It seems to me that a case involving the FF&C clause would be one where the SC would have original jurisdiction since it "arises under this Constitution"

I'm not knowledgeable enough about Constitutional law to be able to refute your sources, but personally I can't see any way Congress could take away jurisdiction from the SC in cases involving Article IV sec 2. And if not, then it can't block the SC from hearing an appeal of any case in which someone challenges a state marriage law on FF&C grounds.

I'm probably missing some obscure nuance of the law here but I still don't think the scenario you outlined in your post will work, much as I would like for it to.

15 posted on 12/05/2004 11:22:21 PM PST by epow
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